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SPEECH 



HON. J. M. HOWAED, 

OF MICHIGAN, 

ON THE 

CONFISCATION OF PROPERTY. 



DELIVERED IN THE SENATE OF THE UNITED STATES, APRIL 18, 1862 

The Senate having under consideration the bill (S. No. 151) to conflgcate the property and free 
the slaves of rebels, Mt. Howabd said.: 

Mr. Presfdent: The great purpose of the present bill is easily cotnpreheDded, 
easily und<?rstood, easily stated. It contemplates two classes of jjersons who have 
been or now are engaged in the present rebellion against the Government: the first 
•composed of sugh persons as are absentees, without the United States, owning prop- 
erty within the United States, the other is that class of persons who are resident 
"within the United States, who own property within the limits of the United States ; 
•and both classes are, by the plain terms of the bill, described and treated as insur- 
•gents, having taken up arms against the Government of their country. The leading 
purpose of the bill is to declare forfeit and confiscate, all the property, real and 
personal, corporeal and incorporeal, of both these classes of persons, to tlie United 
States, it being assumed by the bill, and being so declared, that both classes of per- 
sons are beyond the reach of the ordinary process of courts of justice and cannot 
t)e served therewith. 

It need not be denied, Mr. President, that this bill, in the features to which I 
tiave alluded, is one of novelty in this country. I should rather say, sir, and say 
more correctly, that for some eighty yeare past — thank Heaven and the good people 
of the United States of America for maintaining a free republican government — no 
■occasion has presented itself for exercising or enforcing this description of legisla- 
tion. But we must remember that we are living in novel times. We must remem- 
ber that not this country only, but no country on the fac« of the globe, was ever 
•engaged in a struggle like that which now deluges the face of this country in blood. 
We must contemplate the state of things as it actually is. Would that it were dif- 
ferent. Would that these horrible scenes were not now upon us. Would that they 
•could be, by some ingenuity of man or interposition of Heaven, avoided. But, sir, 
we are bound as men and as patriots, as lovers of the Government under which we 
live ; we are bound by our oaths of office here ; we are bound by our obligations as 
the guardians of free government, and the sustainers of this great experiment at 
this trying moment, and for all future time, to come up to the work, and like men 
"do our duty and our whole duty. 

The leading objection, aside from unconstitutionality, to the principle of confis- 
cation asserted in the bill, and earnestly pressed upon our attention by its oppo- 
nents, is that the practice is tainted with the cruelties of past ages, is too anti- 
quated and harsh to receive recognition in modern wars, and has, in fact, been 
dropped from the code of war among civilized nations. And some gentlemen, in their 
zeal, and in order to stamp upon it the odium of semi-barbarism, have asserted that 
the practice has not prevailed since the conquest of England by William the Nor- 
man, and that enlightened, civilized nations have refused to resort to it. If such be 
the historical fact : if the advocates of this great measure — great in what it under- 
takes, great in the mighty political and social renovation it proposes to work in the 
■insurgent States, great in its teachings of allegiance aod loyalty to a deluded por- 
tion of our countrymen, greater in the salutary and necessary retribution it carries 
home to the enemies of order, liberty and free government, and greatest in the pro- 
tection and gratitude it promises to the faithful found among U\e faithless in the 



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bosom of the rebellion — if, I say, the advocates of this measure are departing from 
high historical precedents, and endeavoring to commit our Government to a prac- 
tice which will leave upon it the stain of dishonor in the face of the civilized world, 
surely we ought to pause. Surely we ought never to incur such a stigma. Though 
we all feel, all know, that the provocation which has impelled us to take up arms is 
wanton and wicked ; though the impartial pen of history must record the fact that 
the insurgents never suffered a wrong at the hands of the Government, and had no 
ground whatever to apprehend any ; though their whole conduct from the begin- 
ning has been marked by perfidies and atrocities towards the Government and its 
loyal supporters, unexampled even in the chronicles of civil war, yet, for the sake 
of the great principles of humanity, for the sake of our own good name and the 
future good name of our beloved country, we must not yield to the impulses even of 
a just resentment and suffer ourselves to do that which may be indefensible in the 
eyes of mankind. 

Does, then, the practice of forfeiture and confiscation to the use of the State, as a 
means of carrying on war, justly deserve the denunciation it has received in this 
discussion? Is it by the usage of nations excluded as an instrument of modern war- 
fare? Is it such a violation of the rules of humanity as to have gone into disuse in 
modern times? 

I do not so read history. On the contrary, I find it to be what it ever has been, 
an ordinary form of reprisals, a means of carrying on hostilities as aneient as the 
idea of property itself, receiving the practical sanction of all ages, from the time 
when Nestor seized and carried off the herds of the JSleans to compel them to pay 
their debts, down to this very day. I find it recognized and sanctioned by the 
great teachers of the laws of war, and by the most distinguished and magnanimous 
heroes who have illustrated the art of war. As a means of hostility, history shows 
it to be as allowable as the killing of our enemies, making them prisoners, or weak- 
ening them and strengthening ourselves in any other manner. 

The history of the civil wars of England ever since the Conquest has been 
marked by seizures and confiscations. The very rule of the common law, by which 
the commission of treason is followed by a forfeiture of real and personal estate, is 
a plain adoption of the principle of confiscation into the law of England; and 
though she now discards another incident, the corruption of blood, she would, I 
apprehend, be the last nation on earth to reject the principle of confiscation in the 
prosecution of her wars. Under this form of carrying on war, and often as against 
the subjects of nations with whom she was at peace, she has too often filled her 
treasury with the gains acquired by her expeditions, almost, if not wholly, worthy 
of the name of plunder and piracy ; too often has her navy seized upon neutral 
commerce; too often have her privateers plundered the ocean, carrying home 
from the Spanish main the rich ingots from the mines of Mexico and South 
America; too often have her military authorities violated all the humane rules of 
modern war in their treatment of the enemy; to allow h?r to criticise the practice 
of confiscation. It does not lie in her mouth to school us, or the rest of the world, 
on this subject. She must first blot out from her history the precedents she has set 
in the seizure of the Church property under Henry VIIL, the terrible confiscations 
of lands and goods at the resoration of the dynasty of the Stuarts, whose owners 
were hung and quartered under the sentences of her Jeffreys and Scroggs, or forced 
into exile by the restored tyrants ; the confiscations of the property of many of 
her cavaliers who fled to Virginia and elsewhere to avoid the pikes of Cromwell 
and his liberty-loving Puritans ; and she must also expugne from her history the 
truth recorded against her by our fathers in their Declaration of Independence, 
that she had " plundered our seas, ravaged our coasts, burnt our towns, and de- 
stroyed the lives of our people." 

We need not go far back in the history of France to find the moat striking evi- 
dence that this principle has not been renounced as a means of war, especially of 
civil war. The revolution of 1789, by which the feudal system was destroyed and 
the French nation regenerated, owed its successes and the final triumph of tlic great 
principles which lay at its foundation, to confiscations of the property of the ene- 
mies of the republic within the limits of France. 

I know it is the fashion of many to speak of these things not as precedents to be 
followed but warnings to be heeded. The occasion does not require or allow me 
to enter into the discussion of the abstract justice of those confiscations, and I only 
refer to them as presenting a most signal precedent set by the leading continental 
nation of Europe. The Fi-ench people were not barbarians. They were not adven- 
turers like the followers of William the Conqueror, leaving their own country to 
•cquire power, pelf, and plunder in Britain. They were struggling for freedom 
»ua equal rights. They were striving to shake off the burdens of centuries of suf- 



ftring and wrong under their despotic kings and their still more despotic nobility. 
They drew the sword against privilege, and threw away the scabbard. That we 
may not accuse them of passionate haste let us look upon the picture, which the 
ablest, most impartial, and most accurate of modern historians draws of their con- 
dition at that period. M. Thiers says : 

" The political and ecoaomical state of the country was intolerable. Everything was privilege 
in individuals, classes, cities, provinces, and even trades. Everything was a trammel upon in- 
dustry and the genias of man. Civil, ecclesiastical, and milUary dignities were exclusively reservea 
lor certain classes, and among these classes to certain individuals. A i)rofe88ion could not be 
embraced except under certain titles and pecuniary conditioHS. The cities had the privilege of 
levying and collecting the imposts and a share thereof, and the choice of magistrates. Mere favors 
from the crown were "converted by long survivorships in the family into family property, and did 
not permit the monarch to give any preferences. No liberty remained except in consideration of 
pecuniary gifts, and the minister had to be disputed with for the abolition of a burden which was 
wholly without value or utility. Everything was motionless in a few hands, and everywhere the 
few resisted the despoiled many. Burdens weighed upon the one class. The nobility and the 
clergy held nearly two-thirds of the lands; the other third was held by the people, who paid the 
Imposts to the king, discharged a throng of feudal rights to the nobility, paid the titlie to the 
clergy, and, besides, sustained the depredations committed by the nobles in their hunting excur- 
■sions. The imposts weighed most heavily npcm consumption, and consequently upon the mass of 
the people. The mode of collection was vexatious. The seignors were always, and with impunity, 
In arrears, while the people, on the contrary, maltreat?d, imprisoned, were condemned to surrender 
their persons in default of their goods. They nourished with their sweat, they defended with their 
blood, the high classes of society without being able to live themselves." 

Such is the revolting picture of the condition of the French people. It was of 
these abuses, growing out of the feudal system, which made the laboring and pro- 
ducing classes the victims, the derision of an idle and effeminate nobility, that the 
people demanded reform. Their efforts were resisted by the privileged classes, the 
royal family, and the great mass of the nobility and clergy. Privilege was true to 
its instincts. It clung to its advantages with desperate tenacity, and regarding all 
•as enemies and plund-crers who sought to loosen its grasp upon its long enjoyed 
spoils, prepared to plunge the nation into the horrors of civil war. To this end it 
divided its forces, and while some remained at home to act the part of spies upon 
the republicans, and to welcome the foreign invader to the soil of France, others 
emigrated and stirred up the surrounding nations to join in the bloody crusade 
against the republic. Within and without she was beset by implacable foes. Both 
•a foreign and intestine war pressed upon her. Treason and assassination within co 
operated with legitimacy from without, and while the friends of reform cried aloud 
*' liberty, equality, fraternity" privilege, in the midst of its myrmidons, hovering on 
the frontiers, raised th« gloomy shout of "order, legitimacy, down with anarchy." 

Without justifying the excesses inseparable from the struggle, we are not surprised 
at, nay, we cannot but admire the spirit of steady defiance and whole-souled devo-. 
tion of the patriots to their principles, when, with leaguering armies of foreigners^ 
upon their borders, and the fires of civil strife raging in their midst, they proclaimed, 
" war to the castle, peace to the cottage." It showed that they were conscious ihat 
they were struggling in the interest of liberty, and that courage, a courage fjhat 
defies all the assaults and all the enticements of power, is, after all, the only safe- 
guard for its protection and preservation. 

A wasteful and corrupt court had bankrupted the public treasury. The nobles, 
whose estates had contributed so little to the public burdens, were fugitives abroad, 
conspiring with the public enemies for the overthrow of liberty and the restoration . 
of the old tyranny. The estates of the church, comprising about one-eighth of the 
lands, had never contributed a farthing to the public necessities, and most of their 
occupants were openly disloyal to the republic, giving aid and «<»mfort t& the roy- 
alist conspirators at home, and corresponding with the enemy abroad. 

Under these circumstances, and as an obvious means of defending the country and 
prosecuting the war, the Convention seized upon and confiscated to the public use 
the estates, real and personal, of the emigrant nobles who refused to adhere to the 
republic, and also the property of the church, providing for the support of the loyal 
priests and for religious worship, out of the funds of the State. This property con- 
stituted the sole basis on which the financial system of France rested, from the 
commencement of the republic down to 1800, and during that period more than five 
hundred millions of dollars was, as history shows, derived from the sales of such 
property. It was a plain, undisguised confiscation ; and the sales were never wholly- 
arrested during the reign of Napoleon. It was not without its benefits. It caused 
the estates of a once burdensome privileged class to change hands, parceled them 
out, and placed them in the possession of small proprietors, thus rendering them 
productive, and inviting and encouraging the industry of the- free laboring man. 
This great measure, and the early decree abolishing nobility and the right of primo- 
geniture, made of France a new nation. They secured to her the realization of the 



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vision of rAb^g Sey^s : " "^hat is the third estate? Fothibg. What should' it t>e f 
Everything." Tliey gave to France a patriotic soldiery, who carried her conquering' 
eagles to all thff capitals of Europe. They gave to every Frenchman, however 
lowly, a home and a) fireside; And they taught the world that nations and law and 
order and renown cBt» subsist without privilege ; that the only solid foundation of 
national strength is in the hearts of an industrious, laboring, self-sustaining people;- 
that liberty and equality are no dream/ and that there is no patriotism so strong as 
that which arises from' & sentiment of brotheily kinduess, and a consciousness of 
equality before the law. 

Sir, the analogies esistiiig between the social condition of France at that frightful 
period, and that prevailing under the slaveholding oligarchy in a la:^e portion of 
the insui-gent States, cannot escape the notice of the careful observer. It has plainly 
not escaped the notice of the' leaders of the insurrection. But had they been wise' 
in time, had they considered- calmly the difficulty of forever upholding the principle 
of privilege and all its concomitants in the midst of a people worshipping liberty 
and equality as their household' gods, this fratricidal war would never have burst 
forth. But let me tell them 1 bat in their mad attempt to banish these gods from 
the hearths of their own people, thty will in the end but endear them to their true 
worshipers; and, like the French noblesse, find themselves driven from the congre- 
gation. In saying this, I do not ref«r to the black population.- 

It does not detract from the force of this example that tliere were great an<f 
. lamentable excesses committed by the new government. Every revolution has its 
irregularities, over which humanity ia compelled to ■weep. I refer to the confisca- 
tions in p'rance, not so much to approve them' as to present them as a striking pre- 
cedent to show that civilized nations ha-ve not disused this species of reprisals as a 
means of waging war. Surely, an instrumentality that was employed by Napoleon 
habitually and for long years against his own disloyal countrymen, does not, as a 
war measure, deserve to be characterized as semi-barbarous. Nor did he confine 
the right of reprisals to the property of an enemy, but, as he was at liberty to do' 
under the recognized laws of war, extended it to the persons of his enemies found 
within his dominions at the commencement of hostilities, detaining them either as 
prisoners or hostages. An instance of this kind occurred on the rupture of the 
treaty of Amiens. 

But I pass from European precedents to those neare? home. As a means of car- 
rying on war, the principle of confiscation was fully recognised by the several 
States during our Revolution. The precedents it furnishes seem to me perfectly con- 
clusive upon us. They constitute an important chapter in the history of that war, 
and we cannot disregard them; we cannot treat them as evidence of barbarism or 
even unnecessary severity, without bringing a reproach upon our fathers as men 
and Ciiristians, and a stigma upon their cause, I begin with Georgia. 

Georgia passed numerous acts of confiscation during the revolutionary war. On 
tthe first of March, 1778, by a single act, she attained of treason one hundred and' 
rseventeen citizens of Savannah, and confiscated all their property, real and personal, 
iSe well as all the property, real or personal, of all persons who, since the 19th of 
April, 1775, had levied war or conspired against the safety of the State. (See Mau- 
bury & Crawford's Digest of Laws of Georgia, from 1775 to 1800, p. 62.) 

On the 4th of May, 1782, her Legislature, by a similar act, banished from the 
State some three hundred persons, and declared all their estates, real and personal, 
. .confiscated to the use of the State. 

Tbe Supreme Court, in Higgenson v». Mein, (4 Cranch,) recognize the validity of 
these confiscations. Indeed, the first article of the treaty of peace recognizes them 
.and all others, for it expressly provides that all persons who have any interest in 
confiscated lands, either by debts, marriage, settlements, or otherwise, shall meet 
, with no lawful impediments in the prosecution of their just rights. 

, In April, 1776, South Carolina passed an act called the sedition act, by which she 
,, outlawed all persons who had taken service under the king, declaring them guilty 
of $ capital offence, and forfeiting their estates. 

la February, 1782, she declared forfeited and confiscation to the use of the State 
all the property, real and personal, of a list of proscribed persons, declaring her 
eommissioners " fully seized and possessed" of all such property, and authorizing 
them to sell and convey the same to purchasers. 

The number of persons against whom this act of attainder and confiscation was 

{)a8sed, was about three hundred, and the amount of property must have been 
arge. 
In 17!7'9, the Assembly of North Carolina passed an act declaring — ■ 

" That all the lands, tenements, hereditaments, and moveable property within this State, and all 
and evefy right, tiU^,.and interest therein, of which any person was seized orpossessed, ox to which 



any person Tiad title on the 4tli day of July, A- D., 17T6, who on said day was dbaeni fro7n. Pits State 
and evert/ part of the United States, and who still is absent/rom the same, or who has at any 
time during the present war attached himself to or aided or abetted the enemies of the United 
States, or who has icithdrawn himself from this or any of the United States after the day a^fore- 
said, and still resides beyond the limits of the United States, shall be, and are hereby, declared 
to be conflscatod to the use of this Bute."— Acts of Assembly of Norih .CaroUna, edition of 1804, 
page 244. , 

This statute operated not only against disloyal persons at home or abroad, but 
against absentees who had committed no ofi.enee and taken no part in the war. It 
proceeds upon the ground that the citizen owes it to the State as & duty in such & 
crisis to stay at home and help to defend iit. 

In May, 1779, the Legislature of Virginia passed an aet of forfeiture of all the 
real au<i personal property of aJl British subjects, eiplaining the term British subject* 
to mean — 

"All persons, subjects of his Britannic Majesty, who, on the 19th of April, in the year 1775, when 
hostilities were commenced at Lexington between the United States of America and the other 
parts of the British Empire, were resident or following their vocations in any part of the world, 
other than the said United States, and have not since either entered into public employracBt of the 
«aid States, and joined tlie same, and by overt act adhered to them; and all such subjects, inhabi- 
tants of any of the United States, as were out of said States on the sarae day, and have since by 
overt act adhered to the enemies of the said States; and all inhabitants of tlie said States who, 
after the same day, and before the commencement of the act of General Assembly, entitled 'An 
act declaring what sliuJl be treason,' departed from the said States and joined the subjects of his 
Britannic Majesty of their own free will,'' &e. 

The Governor and Council were empowered to declare the forfeiture, and only 
one month was given to the owner to eonie forward and contest tkeir decision. (.See 
Henning's Virginia Statutes at Large, p. 66.) 

Maryland, in 1780, by a sweeping act, provided that — 

"AH property within this State, rlebts only excepted, belonging to British sabjeeta, shall be 
seized, and is hereby confiscated to the use of this State." 

The act appointed commissioners to administer the property. 

In Smith vs. Maryland (6 Crancb, 306) the Supreme Court, per Marshall, Chief 
Justice, hold that no act of the commissioners was necessary in order to give seizin 
of the lands thus confiscated to the purchaser under the State, and remark that — 

"The law considers that all property beloagiag to a British subject was, by the mere operatioa 
of the law, seized and conjiscateid.'' 

Pennsylvania, by her act of the 27th of November, 1779, declared — 

"That; all and every the right, Utle, interest, property, claim, and demand of the heirs, devisees, 
grantees, or others claiming as proprietaries of Pennsylvania, whereof they or either of them 
stood seized, or to which they or any of them were entitled, or which to them were deemed to be- 
long, on the 4th day of July, in the year 1776, of, in, or to the soil and land contained within the 
limits of the said late province, now State of Pennsylvania, or any part thereof, together with the 
royalties, franchises, lordships, and all otiier the heraditaments and premises comprised, mentioned, 
and granted in the same cliartor or letters patent of the said King Charhs the Second, except as 
hereinafter excepted, shall be, and they are hereby, vested in the Commonwealth of Pennsylvania, 
for the use and benefit of the citizens thereof, freed from all uees, trusts, entails," &e. 

In commenting ujion this statute the Supreme Court, per Justice Marshall, say — 

"When the war of our Eevolution commenced, the Proprietary went to Great Britain, and waa, 
consequently, to be considered as a British subject, not as an American citizen. The right to con- 
fiscate his pioperty or to leave it untouclied was in the Government of Pennsylvania." — Kiri; vs. 
Smith, 9 Wlteaton s Reports, p. 241. 

It is noticeable that, in the preamble of the act, the Legislature put the confisca- 
tion upon the ground that the " safety and happiness of the people is the fundamen- 
tal law of society," and that "the good people of that State demanded it as some 
indemnity for the blood and treasure they had expended in the war of libert}'." 

In October, 1779, New York declared a long list of persons attainted and guilty 
of treason, and that — 

" All and singular the estate, both real and personal, held or «lairaed by them, the said persons, 
eeverally and respectively, whether in possession, remainder, or reversion, within this State, shall 
be, and is hereby declared to be forfeited to and vested in the people of this State." — 2 New York, 
Oreenleaf'8 Edition, vol. I, p. 26. 

A subsequent clause applies the attainder and forfeiture to all persons who might 
be presented under the aet by a gj'and jury and found guilty on trial, or who 
Bhould not, after publication of notice, appear and traverse the indictment. 

By her act of 1784, (page 127, of the same volume,) all these confiscations are ex- 
pressly confirmed, by the name of "confiscations,*^ and provision made for the sale 
of the property, and the application of the proceeds to the payment of her public 
debt. 

In 1777, Massachusetts passed an act treating the estates of refugees who had 
Left the State to join tbie British, as the estates of deceased persons, and reg^uiring 



the snrplns of personal property, after the payment of debts, to be deposited in the 
State treasury, 

In 1788, she passed an act of banishment against three hundred and eight per- 
sons, and decreed the penalty of death in case of their return. (Ancient Charters 
and Laws of Massachusetts, in Appendix.) 

And by a subsequent act during the war, she confiscated the property of twenty- 
nine peraons, whom she denominated notorious conspirators, and among them fifteen 
were connsello-rs, two had been (rovernor, one Lieutenant Governor, one treasurer, 
one attorney general, one chief justice, and four commissioners of the customs. 

New Hampshire, also, besides banishing seventy-six of her former citizens, con- 
fiscated the estates of twenty-eight of them. 

New Jersey was not less in earnest in the work of proscription and confiscation. 
One of her acts punished traitors and disaffected persons ; another leased out the 
real estate of certain fugitives and offenders; and a thii-d forfeited and vested ia the 
State the real property of sundry persous. 

And Delaware, too, forfeited and confiscated to the State the property, both real 
and personal, of forty six persons by name, subject to- the payment of their debts, 
unless they should give themselves up for trial for treason. 

The property of all these loyalists or Tories was thus seized and confiscated 
under the statutes of the States. It was a civil war^ the enemj' was not only from 
without but was found within. Neighbors were enemies; even households were di- 
vided between Whig and Tory. Brother was found in arms against brother, and father 
against son. Scenes of fraternal bloodshed similar to those which are now occurring 
in the slave States were enacted. These measures were all war measures, having each 
and every of them for their object the enfeebling, the expulsion, and destruction of 
the enemy. And they were just, for common prudence suggested their necessity. 
So plain was this, that in after times, when peace was restored, and the bitterness- 
of feeling modified by the lapse of years, the States refused to relax their rigors, or 
to any considerable extent suffer the confiscations to be removed, or their former 
domestic foes, now driven into exile, to reture to their homes. These measures 
were not acts of ordinary legislation in time of peace. They meant not peace, but 
war, civil war ; and by their plain intention, as well as their terms, were but in- 
strumentalities in waging and conducting an actual, existing war. The confiscations 
were leveled against enemies, enemies in the sense of the recognized code of war 
and of nations, and were obviously as much a means of carrying on the war against 
them as would have been the seizure of their property on the high seas, or shooting 
them down on the fieid of battle. No argument can divest them of their real cha- 
racter as war measures. There is no room for subtilty or sophistry as to their kind 
or qualitj'. No ingenuity of argument can remove them from the category in 
which we find them; and unless we deny that our Revolution was a war, we cannot 
deny that these measures were among the means of prosecuting it on the part of 
the colonies. 

I come now to the question of power, the great question whether under our 
written Constitution, we as a Government have in law the right io declare and en- 
force the forfeitures and confiscations contemplated by the bill. 

I admit, that if we have not this power under the Constitution, we cannot forfeit 
and confiscate the property of rebels, real or personal, and that any title we might 
assume to give, would be void in law. 

There is no clause in the instrument expressly conferring the power, and unless 
it is implied as a means of carrying into execution some one of the powers expressly 
granted and enumerated, or some other power not so expressed or enumerated, 
but nevertheless "vested (to use the terms of the instrument) by this Con- 
stitution in the Government of the United States, or in any department there- 
of," we are unable to exercise it. I need not say to candid and reflecting 
men that the dangers arising from too broad an interpretation of the Constitu- 
tion are by no means less to be dreaded and avoided than those proceeding frona 
one too narrow and illiberal. The instrument must be construed with reference to 
the state of things existing at its foiination, and the purposes had in view by its- 
framers. Those purposes are plainly announced in the comprehensive language of 
the preamble, and no one can misunderstand them. They were " to form a more 
perfect union, establish justice, insure domestic tranquilliti/, provide for the common 
defense, promote the general welfare, and secure the blessings of liberty to ourselves 
and our posterity." The insuring of domestic tranquillitj' is thus expressly indi- 
cated as one of the prominent objects of the Constitution, and nothing can be plainer 
than that it means, not mere family or neighborhood tranquillity, not the tranquil- 
lity of the fireside, but the internal tranquillity of the nation as a nation, and of the 
States as political bodies and constituent parts of the nation. It was political traa- 



quillity, as opposed to political disturbance, as opposed to anarchical and insurrec- 
tionary movements of classes, districts, or communities, tending to disturb the in- 
ternal peace of the nation, and to overthrow law and ord^r. 

Such is one of the ends for which the Constitution was made — an important end ; 
one without which the Government itself would have been but vanity and vexation 
of spirit, and the liberties it was to secure a chimera. 

Now, there is no clause expressly authorizing the Government to wage and carry 
on war with a foreign nation, whether offensive or defensive, and yet to pretend 
that because of the absence of such a grant of power the Government, though ex- 
pressly authorized to raise and support armies and provide and maintain a navy, is 
destitute of all power to use and employ them in defense of its own existence, would 
deserve and receive the ridicule of all. But, as if to take away all cavil, and all 
grounds of cavil, and distinctly and expressly to insure domestic tranquillity, the 
convention of 1787 authorized Congress, in terms, to call forth the militia to suppress 
insurrection; that is, an armed rising of many persons, acting in concert, with the 
purpose of overthrowing tlie Government, or of resisting its authority by concerted 
armed violence. This is precisely the form of public disturbance which now exists; 
the same violation of domestic tranquillity, against which it was one express object 
-of the Constitution to guard. And the means which it, by express terms, places in 
our hands to combat and subdue this violence is the employment of the militia. I 
say in terms, for I do not mean to be understood as doubting the perfect right of the 
Government to employ the regular Army and Navy and all other instrumentalities 
known to the art of war, to the same end. Our right to employ such other means 
-grows out of the necessit}- of protecting the existence of the Government, a right 
inseparable from all associations of men permitted by law, and one which cannot 
innocently be renounced. We have the undoubted right, then, under the Constitu- 
tion, by express terms, to employ the militia of the country, and by the plainest 
implication, the Army and the Navy, for the purpose of suppressing the existing 
insurrection. For the Government to employ these means, these instruments of 
military force, is to be engaged in carrying on and prosecuting war, civil war, a war 
which as a duty under the Constitution it is obliged to wage until the insurrection 
is suppressed and domestic tranquillity restored. It has no election between waging 
and forbearing to wage this war. It cannot, without a violation of sworn duty, 
desist from its prosecution until all armed resistance shall have ceased. Our oaths 
of oflSce have linked us to the prosecution of this war, and will link all our successors 
to it, with the force of our obligation not only to the Constitution, but to God. 
Neither we nor they can desert that obligation ; and may we and they have the 
manhood, the constancy, and the honesty iiever to commit so dreadful an apostacy ! 

Some months since the President of the United States, in pursuance of an ancient 
act of Congres issued his official proclamation, declaring the people of several States 
of this Union to be in insurrection against the Government. He at once proceeded 
to employ our armed ships to blockade the coast of nine of the insurgent States 
bordering on the Atlantic, and to close all their ports, cutting them off from trade 
with foreign nations. By hke military measures all peaceful intercourse between 
the loyal and disloyal portions of the country has been stopped. Large armies are 
arrayed on either side of the hostile lines, battle after battle has been fought, human 
life been freely sacrificed under the banner both of the Government and of the 
insurgents, prisoners exchanged, and safe conducts issued and used on both sides, 
and, indeed, as complete and technical a state of hostility created as ever existed on 
earth between two nations, except that as the war is a civil war, in other words, an 
insurrection against a lawful Government, we have not conceded and cannot concede 
to them any of the belligerent rights of an independent nation, save such as are 
due to humanity, and which arise merely upon the score of a common humanity, 
and the requirements of a common civilization. The exact character of the war is 
not foreign or national, but is that of an insurrection and rebellion. It is an attempt 
on the part of the insurgent districts to dismember. the national territory, and to 
install over a part of it a jurisdiction and a political system independent and in 
defiance of the rights, the powers, and the duties of the Government of the United 
States, to convert the citizens of the United States resident there into citizens or 
subjects of a new Government, and to establish another independent nation, or rather 
a nest of small independent sovereignties, on this continent and on our borders. We 
are waging the war to defeat this ambitious and wicked scheme. We are waging 
it not against public or foreign enemies, as in the case of a national war, but against 
persons who owe obedience to this Government, and are rightfully subject to it. 

Nor is it a contest of factions striving for the control of the same Government, 
like the wars of the Roses in England, or the wars of the League in France. In the 
latter kind of wars, as a talented writer and soldier (General Halleck : International 



8 

Law and Laws of War, page 3,^3) of our own day and eonntry, remarks, " eacb 
party is usually entitled to the rights of war as against the other, and also with 
respect to neutrals." But, he adds, " mere rebellions, however, are considered as 
exceptions to this rule, as ever}" Government treats those who rebel against its au- 
thority according to its own municipal laws, and without regard to the general 
rules of war which international jurisprudence establishes between sovereign States." 
And it is undoubtedly the sense of the leading teachers on the laws of war that in 
rebellions the lawful government is not restricted to the inssrumentalities prescribed 
to independent nations. It may not, it is true, violate the laws of humanity. It 
may not exercise wanton cruelty on the weak, the ignorant, the helpless, or the 
deluded ; but it may, on account of their violated allegiance, or on account of their 
indifference, even, to their duty as citizens, impose upon them such restraining or 
punitive burdens as the Government may think best fitted to repel their violence, 
to subdue their rebellion, and restore peace and order. 

If to do this it be necessary to strip them of their lands or their goods, or both, 
it is' allowable by the laws of war; and whether it be done by actual forcible 
seizure, or by legislative act declaring the title ipso facto escheated to the State, 
or whether it be done by the more slow process of judicial trial and sentence, can 
make no difference in principle. The seizure and use of the property is, in any case, 
a means well known to war of strergthening one party and weakening the other. 

I am aware that by the usages of modern war the conqueror does not ordinarily 
disturb the title or the possession of the real estate of the individual subjects in the 
territory he conquers, but that by the general rule of the law of nations the title 
remains in the former owner. The same is also true of moveable property, with the 
exception that this kind of property is always liable to be seized without compen- 
sation by way of foraging and by way of contribution for the support of the in- 
vading or occupying army. But in neither case does the rule, or rather usage, 
amount to a positive obligation ; nor has it been recognized as a custom so univer- 
sally binding as to be considered in the strict sense a law of war. It is in both the 
cases put subject to that higher and universal rule, growing out of the natural right 
of self-defense, that the conqueror may justly take indemdity for the past and secu- 
rity for the future. Vattel says: 

" The conqueror's every right springs from the just defense of himself, which comprehends the 
maintenance and pursuit of his rights. When, therefore, he has entirely vanquished a hostile 
nation, he may, without doubt, firstly do himself justice respecting that which has occasioned the 
war, and pay himself the damage it has caused him. He may, according to the exigency of the 
case, imjwse penalties upon the nation ; and may even, if prudence obliges him, put the nation out 
of a condition to harm him so easily in future. But to reach all these ends, he should prefer those 
means which are the mildest, remembering that the law of nature does not permit us to do ill to an 
enemy except precisely so far as necessary for a just defense and a reasonable security for the 
future.''— rut:el, lib. 3, ch. 13, sec. 201. 

And the rule of sparing the private property of the enemy will be found subject 
to an analogous and farther exception, that its status and title remain under the 
old law so long as the victorious party pleases, and no longer. If he is wise, and if 
his adversary is inspired with magnanimity and good faith, no doubt clemency is a 
most potent means of restoring a lasting friendship ; and no one can help admiring 
the beautiful illustration of the principle cited by my learned friend from California, 
(Mr. McDouGALL,) in the case of the ambassador sent by the Privernates to the 
Roman Senale. Introduced to that august and stern'body of men, and being asked 
by the consul what dependence could be placed upon the peace which he asked of 
them, if they should grant him clemency, the envoy replied: "If you grant it us 
on reasonable conditions, it will be lasting and solid; if not, it will not last long." 
And the learned writer who cites the beautiful example, with a heart overflowing 
with philanthopy and that love of justice and generosity for which he is so famous, 
exclaims to every conqueror, " what fidelity, what succor, can you expect from an 
oppressed people? Would you that your conquests should truly augment your 
strength, that they shoud be attached to you — treat them like a father." 

As betwen independent nations engaged in a war which has humbled one and 
given victory to the other, surely the practice of clemency is, in the estimation of the 
generous heart, a brighter glory than victory itself; for he that ruleth his own spirit 
is greater than he that taketh a city. But wliat, let me ask my honorable friend, 
what place has this principle of clemency in the case in hand? What greater clem- 
ency can be shown our now maddened and revolted countrymen than the restora- 
tion among them of our mild Constitution, our equal and beneficent laws? What 
more reasonable conditions can we offer them than to throw down the blood-stained 
arms of their rebellion ; to fling away the sword that has already drunk the blood 
of so many heroic defenders of this sacred instrument ; to dismiss to their homes 
the deluded multitude whom their unhallowed ambition and cunning and craft haf© 



incited to take up arms; to make reparation for the wrongs they have committed; 
renew their allegiance to th« Government of their fathers ; annul their decrees of 
rebellion ; reorganize their loyal governments, and be again with us and of us ? Let 
me tell you, sir, that clemency other than this is unworthy of us; clemency more 
tender than this is weakness ; clemency that demands less than this is cowardice ; 
and clemency that does not insist upon at least all this is faithless to free govern- 
ment and the hopes of the world. 

Now, sir, I know of no distinction between national wars and civil wars, as to the 
right of seizing and confiscating property. The foundation of the principle rests in 
self-defence and the proseoution of one's just rights by war. If this be, as it doubt- 
less is, the constitutional source of the power in question, the discussion of the point 
need proceed no further. That the States once had it I have abundantly shown, 
both from their statutes — which, by the way, were passed upon the recommendation 
of the Congress of the old Confederation — by the solemn judgments of the Suprenie 
Court, by the practice of other independent nations, and by the writers on public 
law. 

The power has, by the Constitution, been expressly taken away fiom the States. 
It declares that no State shall without the consent of Congress keep troops or ships 
of war in the time of peace, enter into any treaty, alliance, or confederation, or any 
agreement or compact with another State, or with a foreign Power, nor engage in 
war, unless actually invaded, or in such eminent danger as will not admit of delay. 
Here all power to carry on war, except when suddenly attacked, is taken away 
from the States. They are divested of the means they once possessed. They can 
no longer, for that purpose, pass such acts as I have referred to. And still it cannot 
be denied that such acts are war measures. And if the Federal Government does 
not possess the faculty, a most efficient means of crippling an enemy has been totally 
abdicated and thrown away by the whole American people, and for all time. This, 
it is true, is an argument ab inconvenienti ; but it is impossible to disregard it, for it 
seems to me incredible that in framing and adopting the Constitution it was inten- 
ded forever and in all emergencies to discard one of the well known means of wag- 
ing war. 

But we are met by another objection, and told by some honorable Senators that 
this is a bill of attainder, and, being such, we are forbidden to pass it by that clause 
of the ninth section of the first article of the Constitution which declares, "no bill 
of attainder or ex post facto law shall be passed. 

"What is a bill of attainder in the sense of the Constitution? Upon every princi- 
ple of sound construction, the word of attainder ought in this clause to receive the 
same meaning as is given to it in other parts of the instrument. In the first clause 
of section ten, it is declared that " no State shall pass any bill of attainder." Several 
if not all, of the States had, during the revolutionary war, passed statutes, in imita- 
tion of numerous English statutes, expresslj' attaining persons by name and declar- 
• ing them guilty of treason or felony for the part they had acted in the struggle; 
but in every case of the kind the term attainted is applied to persons, and never to 
property only. The meaning of the word attaint, as used in English history and 
jurisprudence, is to stain, to stigmatize, to disgrace, or, to use a more modern and 
homely phrase, to spot; and it would not only be a violation of all grammar, but 
of the well known use of the word to apply it to property. There is no instance in 
our own legislative or judicial history in which it has been so applied, so far as rny 
own researches have gone, and I venture to say no such instance can be found in 
English history. The term always refers to a person, and never to property only. 
It would, indeed, be a singular use of language to talk of attainting horses and cattle, 
steamboats, wagons, casks of sugar, and bales of cotton. 

Again, as if to set this question also at rest, the Constitution declares that "no 
attainder of treason shall work corruption of blood or forfeiture, except during the 
life of th^ person attainted." Nothing can be clearer than that the term attainder 
here means a judicial conviction of an accused person of treason. It is called an 
attainder, and the person convicted is said to be attainted; and the language is 
plainly borrowed from former English and American statutes and judicial pro- 
ceedings. The clause relates exclusively to the punishment of an act of treason 
committed by a person. It contents itself — when that person is convicted, that is 
attainted — with taking his life or sending him to prison, if Congress shall so ordain, 
and forfeiting his estate during the remainder of his days ; but it withholds from 
us the power, upon such conviction, to declare that his heirs at-law shall not in- 
herit the property he may leave behind him. It refuses, in its humanit3% to punish 
them for his misdeeds. 1 repeat, an attainder is a conviction of the person. Before 
the Constitution, it might have been in the form of a legislative act, or of a formal 
accusation, trial, and sentence ia a court of justice, as the sovereign power might 



10 

see fit ; and tlie only change in the mode of ascertaining the guilt of the accused 
which the Constitution has made consists in divesting the Legislatures of all juris- 
diction to try the accused, and in prohibiting the corrupting of the heritable ca- 
pacity of his heirs. But the attainder clause has no more to do with the seizure 
and confiscation of mere enemy property in time of war, as a measure of war, than 
it has with the levy of an execution or the foreclosure of a mortgage. It has no- 
thing whatever to do with it, and does not relate to the subject. That power 
stands on ground very distinct and very distant from the mere judicial proceeding 
to convict a man of treason. 

Undoubtedly a bill of attainder, being a mere legislative act, may, as was ob- 
served by Chief Justice Marshall — clarum et venerabile nomen — in Fletcher vs. Peck, 
(6 Crancli, ) "affect the life of an individual, or mat/ confiscate his property, or 
both ;" but it must be remembered that he was speaking of the sovereign power of 
the State to pass acts affecting persons and property', and not of the meaning and 
efl'ect of the words, "attainder" and "attainted," as employed in the Constitution. 
Nor did he in that case hint at what might be the power of Congress to forfeit and 
confiscate as a war power. And he was, indeed, entirely correct in what he said ; 
for, beyond all doubt, it was of old competent far the legislatures, in their bills of 
attainder against the person, to provide far punishing his person either by death, 
imprisonment, or other personal suffering, or by merely taking from him his property. 
Yet, in the subsequent case of Brown vs. the United States, (8 Cranch,) that illus- 
trious judge expressly asserts that "the power of confiscating the enemy's property 
is in the l*gislatui'e." It is true, he is speaking of foreign enemies, and not of rebels 
in arms, and waging war upon the Government; but I have already shown that, 
by the laws of war, a foreign enemy is entitled to greater lenity tlian a rebel, for 
the reason that the latter has, as an individual, voluntarily violated his duty of al- 
legiance, a duty which was never due from a foreigner. No case growing out of a 
rebellion had at that time come before the court, and its revered records had not 
been put to the shame of perpetuating the case of a rebel. But no one can suspect 
that the patriotic soul of Marshall would have sought out any such subtile distinc- 
tion between foreign war and rebellion as would have extended to a blood-stained 
rebel favors withheld from a foreign enemy engaged in honorable war by the com- 
mand of his sovereign. 

But the honorabl Senator from Illinois, (Mr. Trumbull,) who reported this bill, 
has so abl}' and conclusively replied to this objection that it would be useless, and 
even unkind, in me longer to detain the Senate upon it. 

I come to another objection. We are told by the honorable Senator from Penn- 
sylvania, who sits farthest from me, (Mr. Cowan,) that, although the power of seiz- 
ure and confiscation is lodged in the Government of the United States, yet that 
Congress ie not vested with it, and that it pertains exclusively to the President in 
virtue of his prerogative as Commander-in-Chief of the Army and Navy ; that, as it 
is but an instrument of war, it is for him, not for us, to wield it; that an attempt 
on our part to use it or to regulate its use would be a usurpation of an authority 
which is his; and that all Congress is permitted to do is to furnish the supplies of 
men and money. 

I fear the honorable Senator has been more attentive to the peculiarities of the Eng- 
lish Constitution than those of our own. It is beyond doubt one of the prerogatives of 
the British sovereign, not only to declare war, but to raise armies, build, equip, and 
man navies, and to carry on war by land and sea, without the consent of Parliament, 
and without in any waj' consulting them. He has the whole of the war-making 
power in his hands, and may use it against whom he pleases and so long as he 
pleases, subject to no check by the Parliament, except the right and the power to 
withhold the taxes for paying the expense. Subject to that single embarrassment — 
not by any means a legal restriction, for he may borrow money without the consent 
of Parliament — his power is as absolute over the whole field of war and all its 
operations as that of the most absolute despot. 

Sir, is that our case J Have the people of the United States stripped themselves 
of all power to control the operations of the wars in which they may be involved? 
Is nothing left to their representatives but to furnish the men, the material, and the 
money ; and are their orders as to the mode in which, and the purposes for which, 
these shall be used, totally powerless and void? And does the Constitution subject 
to the will of the President exclusively the use of the military force in all the details 
of the service, and authorize him alone to say when and whither it shall move, what 
expeditions it shall or shall not undertake, what implements of war it shall or shall 
not employ, what armistices it shall or shall not agree to, what places it shall attack 
and what it shall spare, what property of the enemy it shall or shall not seize, and 
when a campaign shall begin and when end ? 



11 

I cannot, sir, assent to this. It is against the genius of free government ; and, in 
my opinion, utterly irreconcilable with the provisions of the Constitution. 

Among the powei-s expressly granted to Congress by the Constitution is the power 
to declare war ; that is, to enact by a formal statute that a state of war shall exist 
between the United States and a foreign Government, thus conferring upon our 
people the belligerent rights created by the usages of war and the laws of nations, 
and recognizing the same rights in the subjects of the adversary Government. This 
act or declaration cannot, however, be necessary as preliminary to an actual state 
of war ; for it is obvious that no nation is under any legal obligation to make a for- 
mal declaration of war before it draws the sword, whether of attack or defense ; 
and the United States may not only be assailed by the arms of a hostile Govern- 
ment, and made, to all intents and purposes, a belligerent Power, but, like other 
nations, may, whenever their safety, their interests, or their honor shall require it, 
actually engage in a war without the ceremony of a declaration by Congress. They 
may doubtless authorize the President, in a contingency, to make war. It may be 
chivalrous, courteous, and humane, to send the herald into the enemy's territory to 
proclaim the approach of the warriors; but it is not a legal obligation, and lias not 
been so considered by nations, either ancient or modern ; and the United States 
have on more than one occasion dispensed with the formal announcement when 
about to make war upon public enemies. We have never declared war upon the 
Indian tribes; we embarked in the war with Mexico, and actually engaged in it, 
without a declaration. And in the case of a defensive war, in which we are at- 
tacked by a foieign Power, as for instance, we were attacked by Great Britain be- 
fore the formal declaration of June, 1812, it is, of course, folly to pretend that the 
nation may not be actually eugagad in war unless by and under a declaration of 
Congress. 

Such a declaration is not essential to the existence of belligerent rights, nor to 
the actual existence of public war. The clause seems rather intended as a restrc- 
tion upon the President's authority as Commander-in-Chief of the Army and Navy, 
preventing him from performing any aggressive act leading to war with a foreign 
Power. It was a warning to him not in any case without the consent of the Legisla- 
ture to give such orders to the Army or the Navy as should lead, naturallj^ to a state 
of hostility with other countries — indeed, a restriction, a curb upon his power of 
command, keeping him at all times within the boundaries of peace and amity with 
the rest of the world. But surely no one will contend that the clause, "shall have 
power to declare war," grants to Congress any right or faculty which they would 
not possses without it ; no one will urge that if it were not found in the Constitution 
Congress would not possess the right to involve the nation in war. Without it, could 
the States either severally or jointly make and carry on war? No; because by the 
Constitution they are expressly prohibited to engage in war unless invaded or in 
such imminent danger of being invaded, as not to admit of delay. The States can- 
not resort even to the ordinary means of self-defense, for they are expressly forbid- 
den in time of peace to keep troops or ships of war. Congress, on the other hand, 
is clothed with the express power to raise and support armies; to provide and 
maintain a navy ; to provide for organizing, arming, and disciplining the militia, 
and governing such part of them as may be employed in the service of the United 
States ; to call them forth to execute the laws of the Union, suppress insurrection, 
and repel invasion. 

The power to raise and support armies and to provide and maintain a navy would 
be totally nugatory without the power to employ them. They are raised and sup- 
ported, provided and maintained to the very end and purpose that they may be 
employed, and employed for the same objects that other nations employ them, 
that is, to engage in and carry on war, whether the war be just or unjust, whether 
it be one of aggression and conquest or of defense and self-protection. The charac- 
ter of the war, whether right or wrong, is necessarily excluded from the discussion 
of the question of the power to engage in it. 

It follows, then, clearly enough, that Congress in the absence of the mere power 
to declare war, would have possessed, by the plainest and most irresistible implica- 
tion, the power to wage it and involve the nation in all the consequences of public 
and lawful war; and that the clause in question does not, in fact, contribute one 
iota to the quantum of power they possess. It was plainly intended as a caution- 
yes, I must go further — as a prohibition to the President, whether acting as Com- 
mander-in-Chief of the Army and Navy or in forming treaties with foreign Govern- 
ments, against any assumption by him of the right, the power, or the duty of in- 
volving the nation in war with another nation, leaving the whole right, the whole 
duty of initiating a national war for any purpose except that of self-defense, to 
Congress, to the law-making power. And the other clauses to which I have referred, 



IS 

plainly and expressly confer on Congress the supreme authority to conduct and con- 
trol the operations of the military- forces of the country. 

For if it be the exclusive right of Congress not only to raise and support armies 
and navies, but (which is an irresistible and immediate inference) to use and employ 
them for warlike purposes, they must possess also the power to control every move- 
ment of the Army and Navy in actual service, whenever they shall see fit so to do. 
They cannot indeed supercede the President in the chief command, but they possess 
the undoubted power under the Constitution to subject him to their own ordfers as 
to the objects of the war, its extent and duration, the contingencies upon which it 
shall cease or be resumed, the means of annoyance or defense that may be employ- 
ed, and, in short, the entire use which he shall make of the military forces of the 
country. 

His mere capacity as Commander-in-Chief renders him in no respect independent 
of the authority of Congress. It does not place him above the law. He is still our 
general and bound to execute our behests, subject to the will of Congress, and lia- 
ble for disobedience to be reduced at once to the condition of a private citizen, and 
incapacitated to hold any office of honor or emolument under the Government. 

Thus far in our history Congress has not, it is true, in any instance exercised this 
supreme power of control over the operations of the military, but have left the 
President free to wield the national forces in such manner as has seemed best to 
him. We have thi^ far, though perhaps not wisely in some cases, abstained from 
interference, and have permitted this great, this conservative, this essential power, 
to lie dormant. Our compaigns have been planned and carried out by the Presi- 
dent, aided b}' his ordinary advisers and by his subordinate military officers; and 
Congress has taken no part but in supplying the means of prosecuting our wars. But 
let us remember there are many other powers in the Constitution which have 
never been brought into activity. Not to use a power aft'ords no solid argu- 
ment against its existence. There may be no need to resort to it, and the very, 
absence of such necessity, though no reason for denying the existence of the 
power, naturallj^ leads the mind to overlook the fact of its existence. It is the 
necessity of using a particular power, pressed upon the minds of Congressand the 
country by an exigent occasion, that leads to a careful and rational search for it. 

We must not be misled by the absurd idea that the framers of the Constitution 
assumed to foresee every particular emergency in the vast future of its history ; for 
■we know from the language they have used in it, and the powers it grants in terms, 
that their vision of the coming years of the Republic did not rest upon the soft 
and sunny horizon of peace, while the clouds of war overhung the rest of the world. 
They foresaw and intended that their nation should take its place as one of the great 
Powers of the earth, ready and able to maintain its proud eminence, whether in war 
or peace. Expecting it to achieve the glories of triumphant war, thej' gave to the 
Oovernment every faculty necessary to humble and subdue our enemies ; but, ti-ue 
to the great idea of popular liberty and a Government founded upon that liberty, 
and fully on their guard against the dangers of unrestrained military ambition, they 
placed in Congress the ultimate power over the sword itself, by giving to them the 
right to raise and support armies, and to call forth the military force to suppress 
domestic insurrection and rebellion. And the principle is to clearly recognized and 
laid down by Story in his Commentaries on the Constitution, and in the decision of 
the Supreme Court in the case of Luther vs. Borden, (Y Howard S. C. R.,) that it 
•would seem but a waste of time to argue it further. 

To insist that the law-making power of a nation is not vested with authority to 
control and direct the operations of war, is to my mind a political and legal solecism, 
which, if practically carried out, may in its future consequences be most disastrous 
to the Government itself. Besides, if this abnegation of all power in Congi'ess to 
aid in, direct, and regulate the operations against the rebels arises, as it posssibly 
may, though I do not impute it, from a fear of hesitation to do our part in putting 
down the insurrection, I must be allowed to say it is not to our credit, and posterity 
will not award us praise for such timidity. It is our plain duty to cotne to the aid 
■of the President, to uphold his arm, to aid him with our counsels, and fully to sym- 
pathize and co-operate with him in all acts calculated to restore tlie reign of the 
Constitution and laws, and to shun no responsibility which, as loj^al men, firmly at- 
tached to our Government, we are called upon to discharge. Our neighbors and 
kindred are in the field; they are freely, gallantly, gloriously shedding their blood 
in defence of the Government. Let us be mindful of them, too, and show them at 
least that we are in earnest. 

Again, it is further objected that the bill violates the rights of private property 
as secured by the fifth amendment of the Constitution, which provides that no per- 
son " shall be deprived of life, liberty, or property, without due process of law, nor 



13 

shall pHvate propetty be taken for public use without just compensation." What I 
have already said would seem to be a sufficient answer to this objection ; for if, un- 
der the power to make and carry on war, private property may be seized and con- 
fiscated, it is quite clear that whatever cases the amendment may include, it doeS 
not include that- The war power takes it out of the category of property thus pro- 
tected. But that the amendment does not relate, and was not designed to relate to 
a state of war, is plain from the very terms in which it is couched — no person " shall 
be deprived of life, liberty, or property." Surely gentlemen do not intend to be un- 
derstood as saying that life and liberty may not both be taken in war, without a 
formal service of process of a court of justice upon the person who is to lose them! 
If so, then not an enemy has been slain by our armies, nor a prisoner made since the 
adoption of the amendment, whose death or capture has m t left upon our troops the 
guilt of homicide or of false imprisonment. The victories of Lake Erie, the Thames, 
Flattsburg, and New Orleans were all unconstitutional; the seizures of British prop- 
erty on land and sea were so many cases of " trespass de boni.i asportatis;" Luudy's 
Lane was a mere illegal foray upon the soil and freehold of John Bull ; and Perry 
and Harrison, Macomb, Scott, and Jackson, in achieving their victories, made the 
egregious mistake of supposing themselves acting under a belligerent Constitution, 
instead of a non-combatant, Quaker Constitution. May I add, without giving offence, 
that 1 hope we have no general now in the field disposed to give this doctrine a 
practical application ? 

But to return. It is quite clear that the amendment, instead of applying to a 
a state of war, was intended to secure the regular administration of justice where a 
state of war did not exist ; to secure every loyal man within the actual dominion of the 
Constitution against lawless violence to his life, liberty, or property, and to prevent 
the taking of his property for the public necessities or uses without paying him its 
fair value; in sliort, to place him beyond the reach of the injustice, rapacity, or vio- 
lence of his own Government, should it be disposed to oppress him; and to give 
him the benefit of a trial in the courts of that Government. But it certainly can 
have no application to a district of country where hostilities are carried on, for the 
plain reason that it is impossible that civil courts should perform their functions in 
such localities ; and the old maxim which we found in Coke and Blackstone in our 
boyhood still speaks the truth — inter arrna silent leges. 

So additional reasons need be urged to show that Congress has full authority, 
Under the war-making power, to free the slaves of rebel enemies ; for, if the title of 
property can be thus transferred, the right to untie the ligament of local law by 
which the slave is bound to his owner is equally obvious. No argument cau be 
urged against the one right that does not lie against the other. I go further : I in- 
sist that since, in the seceding States, all local constitutions, all laws, all govern- 
ment known to the Constitution of the United States, have, de facto, been abdicated 
and abandoned, so that the Federal Government cannot take notice of them, that 
ligament, so far as we are concerned, is already dissolved. It was cut by the same 
sword that severed the Union ; and if the slave, by force or fraud, escapes from his 
master, he is free ; for the local law having ceased, he resumes his natural rights of 
freedom, of which he cannot afterwards be deprived by the Government of the 
United States. 

One word as to the justice and expediency of the proposed confiscation. And 
here I am compelled to say that I desire to make discriminations among the rebels. 
I cannot reconcile myself to the thought of stripping every man who has borne 
arms against the Government of his property. I am not unmindful that multitudes 
have been, almost unconsciously to themselves, drawn into the rebellion ; some under 
the wide spread terror that has hovered over their land— a terror never yet sur- 
passed in intensity, in vindictive passion, in reckless injustice, and actual violence, 
in the history of any community, not excepting the proscriptio.js of Scylla, or the 
reign of terror under Robespierre and St. Just. Multitudes, deluded by the false 
clamors of designing demagogues, have taken up arms under the idea that the 
Federal Government was about to take away their slaves, and that they were fight- 
ing for their property. . 1 1 • 

There can be no doubt whatever that this cunningly-devised delusion, addressing 
itself as it did to sectional prejudice and fanning sectional passions into a flame, has 
done more to drive the masses of the southern people to arms than any other cause. 
It was the supreme artifice of inventive and adroit demagoguery. It was the dread- 
ful agency which General Jackson, nearly thirty years ago, foresaw and predicted 
would be seized upon by Calhoun and his followers to dissolve the Union. It was 
with that terrible instrument of falsehood and deception that the Wises, the Masons, 
the Toombses, the Jefferson Davises, the Yanceys, the Slidells, have, for long years, 
wrought upon the popular mind of the South. Slaveholders, especially in the cot- 



14 

ton States, credited their tales, and thought themselves menaced with the universal 
emancipation of the slaves in the States by Congress, although no act of that body 
was ever passed, and no bill or even resolution had ever so much as been intro- 
duced into either House for that purpose; and although no such measure was ever 
recommended by any State Legislature or any popular convention. Surely no 
people was ever so grossly trepanned by noisy leaders; never was imposture so stu- 
pendous practiced or essaj'ed upon any community. And so far was it carried that 
the non-slaveholding whites were seduced by its multiform insinuations into the be- 
lief that one object of the North was, by freeing the blacks, to make them the equals 
and competitors with themselves in the various fields of labor and industry, and bj' 
legislative pressure to bring about an amalgamation of the two races. Sir, even Satan, 
disguising his horrid form, and 

"Squat like a toad fast by the ear of Eve.'' 

practiced no more deliberate deceit upon the sleeping mother of the race. They 
alarmed the fears of the timid and unthinking; they aroused the vigilance which 
ever presides over property ; they stirred up the gall and bitterness of the bigot and 
fanatic, who deduces the right of slavery from the Gospel itself; they inflamed the 
sectional [U'ide of those whoj mistakenly claimed personal and heroic qualities supe- 
rior to those of northern men ; addressing the rich planter, they scoffed at labor as 
fit only for slaves ; they spoke of the rapid increase of population in the free States 
as an alarming portent and sorrowed deeply over the prospect of being compelled 
to submit to the will of a majority. Finding that by their own incautious haste in 
forcing the Northern Democracy to adopt obnoxious measures they had united the 
northern people to resist the further triumphs of their ambition and had thus lost 
the balance of power, they invoked eloquently the memories of their former domi- 
nation and we]Jt over its decline. 

At every public gathering the air was burdened with their impassioned appeals 
to the masses to rise and resist the imaginary wrongs theratened by the North, or, ' 
as they derisively called the friends of the Government, Yankees. Every court- 
house, every church, every fair-ground, was vocal with traitorous eloquence, and 
God's innocent air was loaded with execrations against a Government, the work of 
their and our fathers, which had never harmed a hair of their heads, and whose only 
fault — shown in the compromise measures of 1833, was that it had not loved them 
wisely but too well. 

To speak in favor of the Government was to incur from the nimble tongue of sedi- 
tion the charge of abolitionism, and to be threatened with indictments and impris- 
onment for endeavoring to stir up the slaves to revolt and murder their masters. 
Even the fireside was infected by the pest, and inn3cent mothers and dauughters 
froze with liorror at the scenes of murder and burning, and a fate which is worse, 
pictured to their fancies by the lying demagogues who addressed them. 

To the aspirant after place and honor they held out the prospect of a separate 
congress, president, separate cabinet ministers, judges, and embassadors and consuls 
abroad; to the lovers of adventure and booty, they pointed to the weak and dis- 
tracted Governments of Mexico and the Central American States, to their mines, 
their cotton and sugar lands, and the ornaments of their churches. Their ambition 
grasped Cuba, and that island was soon to undergo a practical verification of the doc- 
trines of the Ostend conference, which had received the.blind adhesion of the President 
whom their votes had elected in 1856. And at the foundation of this splendid chimera 
of revolution and dominion, and the pivot on which the whole structure was to turn, 
was the idea, repelled by all the accredited teachers of morals and public law, that 
the black man was born to be a slave and that it was to defy the decrees of God 
and nature to allow him to be free. 

To say that, under this state of things, all persons who have participated in the 
rebellion are alike guilty, is, it seems to me, unreasonable and untrue. Surely, the 
terrified, the seduced, the misled, the weak, and even the waj^ward, are to be dis- 
tinguished from the firm, the intelligent, the malicious, the deliberate, and the 
powerful. The axe of justice should not fall alike upon those who sin with full 
knowledge of their wrong and those wliose fault arises rather from their association 
with others. The laws of humanity, of morality, and the practice of Christian na- 
tions forbid, in such cases, the confounding of the comparatively innocent with the 
deliberately guilty. Our own self-respect, our own love of justice, should and I 
doubt not will guard the Government of our country from such a reproach, and 
teach the masses of our erring countrymen that our victorious blows are dealt solely 
in the interest of humanity, law, and oi-der; and that though they see it not, their 
and our posterity will acknowledge that we conquer but to save. 

Ah to the rule of discrimination, I can think of none more obvious and practical 



15 

-than to include all those in the confiscation who have borne arms against the Gov- 
ernment, or aided and comforted the rebellion, and who have at any time taken an 
oath to support the Constitution of the United States, or held any commission in 
the rebel land forces, or served as an officer in their navy, or acted as a member of 
the rebel congress, or of any of the insurgent State legislatures or conventions since 
the taking effect of an ordinance of secession, or as president, vice president, member 
of the cabinet, judge or other officer of a court, or foreign minister, commissioner, 
consul, or commercial agent of the so-called confederate States. This rule, though 
it may not reach all the ringleaders of the rebellion, will, I apprehend, be found 
sufficient for the ends of justice and of easy application. It furnishes simple tests, 
and the evidence of guilt will be easily accessible. 

I shall, therefore, at the proper time offer an amendment by way of proviso to 
the first section of the bill in accordance with these views. It will be in close 
analogy to the classification embraced in the amendment of the Senator from Ohio, 
farthest from me, (Mr. Suerman,) and I shall commend it earnestly to the favorable 
consideration of the Senate. 

Little further need be said, I apprehend, of the justice and expediency of the pro- 
posed confiscation. While I regard it as a war measure to be used for crippling and 
humbling the enemy, I am not forgetful that it may be regarded in two other points 
of view; firstly, as a means of obtaining indemnity for the cost of suppressing the 
insurrection, and, secondly, as a punishment for the great guilt of those who have 
intelligently engaged in it. 

The first object ought not to be overlooked. The wanton aggressions upon the 
Government will, before peace shall be restored, have cost us $2,000,000,000, a debt 
the bare interest of which will hang heavily upon the people for ages to come. ' Every 
branch of industry will feel its pressure, and every man, woman, and child must 
consent to the mortgage which this accursed rebellion has fastened upon our lands 
and goods. That those who have wantonly and wickedly occasioned this unavoid- 
able distress to the loyal and the innocent, should, when their estates are in our 
power, be suffered to shirk a burden which upon the principles of a just retribution 
belongs ukolly to them, is what a prudent people will never consent to. That 
people, though not fond of war and slow to plunge into it, are not afraid of it, and 
they are not so forbearing, so weak, as to waive any of the essential rights of war, 
nor so ridiculously chivalrous as to embark in it merely for the purpose of subduing 
their enemies and letting them go free again without asking them to help pay the 
expenses of the amusement. A Government that runs its people into debt for a 
just war, and, omitting to take full indemnity from the enemy while it is in its 
power to do so, leaving its own people to pay all the expenses, affronts and injures 
them, and encourages the enemy to new aggressions. In such a case success is 
without security, and peace but a truce. 

The Government of the United States has witnessed what no monarchy ever wit- 
nessed. It has coped with the most formidable rebellion in the history of the world, 
one which no monarchical government since the dawn of history could have with- 
stood for six weeks. It has seen the people, by whom and for whom the Govern- 
ment was fashioned, arm themselves and rush voluntarily forward to its support in 
throngs too numerous even for the occasion. It has seen them willingly, the old 
and the young, the rich and the poor, the educated and refined as well as" the rude, 
the native born and the foreign born, the Protestant and the Catholic, the believer 
and the unbeliever, all, all hastening to aid, by arms and by money, in sustaining 
the Government and subduing its foes. Shall we turn round to these uncounted 
faces, now gazing upon us with inexpressible anxiety, inexpressible hope, and uncon- 
querable resolution, and coldly say to them : " We will take no indemnity for you 
or your friends; you are pouring out your treasure and your blood in the holiest 
cause in which nation ever fought or suffered ; continue, good friends, to do so still, 
but pardon in ua the weakness, if such you will call it, of abstaining from taking in- 
demnity; we fear it will offend the enemy!" Oh, sir, is there a'loyal heart that 
would thus bow itself down before traitors ? And is there a traitor, with the spirit 
of a man in him, who will respect you for the spiritless forbearance? 

He needs no argument to persuade him of the rule of war that lands as well as 
goods may be taken from the enemy. He has by a stroke both bold and early, not 
only launched his pirate craft against your unarmed commerce on the sea but seized 
and confiscated the lands and moveables of every Union man within his reach who 
dares open his mouth in behalf of the Government. His proscriptions have beggared 
thousands upon_ thousands, desolated their hearths and driven them into exile for 
the cnme of loving the flag you are defending. He despises your mercy, laughs at 
your forbearance, and spits upon the olive branch you hold out to him. He knows 
that his fate is victory or death, triumph or exile, and he is resolved boldly to 
stand the hazard of the die. He has not yet, though bleeding under your blows, 



16 /l 

lisked of you a favoir ; but to the ordinary means of annoyance lias not scrupled to 
add assaults upon non-combatants, violence to women and children, the poisoned 
cup, the atrocities of savage warfare, and even the violation of the dead. Sir, tell 
me not that such a foe can be rendered wickeder or stronger by the use of any 
means known to the laws of war, nor that his resistance can be overcome by any 
thing but blows well laid on and followed up from one field to another. Do not 
let us delude ourselves with the vain idea that the warlike policy oi Fabhis Cimc- 
iator, delaying battle to exhaust the strength of the invader, nor the mild charities 
of Henry iV, feeding his revolted but half-repentant countrymen to save them from 
famine, will tend to appease this frenzied rebellion. We must fight it out. It is 
my deep conviction that we must crush it by our arms, or suffer our nation to be bro' 
ken into fragments which no compromise or conciliation can reunite; exhibiting the 
ghastly wreck of popular government, in the midst of which liberty will find its grave. 

It has been objected to this bill that it assumes to forfeit and annul the title of 
rebel property before we get it into our actual possession, and that therefore, as a law 
of capture, it transcends the rule of war, which is that the title does not pass 
from the owner until the property is in the firm possession of the captor ; whereas 
the first section of the bill makes no such distinction, but declares all the title of 
the armed rebel to all his : -.ijerty, wherever it may be in the United States, to be 
vested in the GovernraeiA^- IL is admitted that by the usages of war between sov- 
ereign nations an actually manucaption is requisite; and the honorable Senator 
ftom California, (Mr. McDougall,) who has spoken on the bill, was quite right in 
his application of the rule in such cases. But it must be recollected that for a citi- 
zen of the United States to take up arms against his country is criminal, while the 
doing of the same act by a foreigner serving under his sovereign, is wholly without 
private, individual guilt. The right to punish such a crime is a thing incapable of 
argument. It is as plain a postulate as the right of the Government to exist, and 
the Constitution places no restriction whatever upon the power of Congress to pun- 
ish it with the single exception that where the owner has been formally indictedj|^ 
tried and convicted in a court of law his heir shall not fail in his right to ihherit 
after his death. 

But the measure before us has nothing to do with the person of the rebel, but 
solely with his property lying within the United States and our constitutional ju- 
risdiction. Tlie fact tliat that jurisdiction may be suspended by violence and 
ti'aitorous resistance in particular localities, does not afiect our power to pass the 
act nor alter its effect when that suspension shall cease ; for, as I have already 
shown, the Supreme Court, in the case of Smith vs. Maryland, hold that no actual 
possession or seizure by the Government is requisite and that the title passes by the 
mere operation of the law. (6 Cranch, S06.) So that whenever our law shall be 
in actual force there by the destruction of armed resistance, the forfeiture takes effect 
as from the time of the act committed. It is, indeed, like any other penal statute; 
it is to be executed whenever the object of it is brought within its actual operation, 

No, sir, the friends of this measure do not disguise the fact that one of its objects 
is punishment, punishment of the most wanton ciime ever committed since he who 
took the tliirty pieces of silver betrayed his Lord and Master. Sir, we all love our 
country and revere the memory of our ancestors. But by that love, by that mem- 
ory', by the experienced blessings of free government, by the hitherto well-grounded 
hope that this " unsceptred emj)ire " shall be the praise and glory of the nations, 
by my love of justice and my hatred of crime, I shudder at the thought of letting 
this great offense pass without punishment. Throughout the world the friends of 
liberty and beneficent laws will not thank us for it. Our own countrymen will 
loudly accuse us of an omission which in itself, if not criminal, is unnatural and 
dangerous to their future peace. Sir, pass this confiscation, with proper discrimina- 
iiations. Let its blighting breath fall upon the ringleaders who have betrayed the 
weak and the uiiwarj', whose poisoned words have frenzied their neighbors, and 
whose cruel arms have spread desolation where peace and friendship once reigned 
under the old flag. Carry it into the border States, into Missouri, Kentucky, Ten- 
nessee, and Virginia ; carry it to the half-burnt cabin where the Union father, the 
Union mother, and the Union daughters, struggling amidst the ruins of a once happy 
home are weeping over the fate of sons and brothers who have fallen in dreadtui 
combat with marauding traitors ; read it to them while in their anguish, and you 
will change their tears of mourning into tears of joy. You will bring them an as- 
surance that their Government is still mindful of them, is still their protector and 
avenger ; that it is mighty in its power and its justice, and that while it ever prefers 
to be beneficent rather than severe, it does not forget the necessity of a righteous 
retribution, nor that its eagles bear the arrows of punishment as well as the shield of 
protection, 

Lu U vo j__ T0WSB8 A 00., printers. 



